Pondering the Supreme Court’s Future

Anyone interested in the future of the Supreme Court might ponder a three-sentence order the court issued on the last day of August. It announced the court’s denial of North Carolina’s emergency request to reinstate the voter ID and two other provisions of its election law that a federal appeals court struck down this summer as intentionally discriminatory.

Had Justice Antonin Scalia been alive and voting, the state’s motion would undoubtedly have been granted, giving North Carolina a green light to conduct the Nov. 8 election under a law that the appeals court found to have been devised “with almost surgical precision” for the purpose of suppressing the African-American vote.

That would have been an astonishing outcome, raising to a new and dangerous level the intentional blindness with which the court, in the Shelby County case three years ago, disabled a major provision of the Voting Rights Act of 1965. So in thinking about the new Supreme Court term about to get underway, I want to unpack the Aug. 31 order, which got too little attention outside North Carolina, and consider other ways in which Justice Scalia’s absence might shape at least the early months of the new term.

North Carolina asked the justices to put the appeals court decision on hold until the formal Supreme Court appeals process runs its course, sometime after the election. The court receives many such requests, and when it denies an application for a stay of a lower-court ruling, it typically does so in a one-line order without elaboration.

But in this instance, the standard sentence was followed by two more. The second announced that “the chief justice, Justice Kennedy and Justice Alito would grant the stay, except with respect to the preregistration provision.” (This was a provision of the law permitting 16- and 17-year-olds to indicate their intention to become voters; after checking their eligibility, the state then automatically registered them to vote when they turned 18. Although it had proved successful in increasing voting participation among young adults, the North Carolina Legislature eliminated it. The appeals court restored it.) The third sentence said simply that “Justice Thomas would grant the stay in its entirety.”

Five votes are needed to grant a stay, whether the court has eight or nine members. The vote that the four dissenters were missing, clearly, was that of Justice Scalia; those five comprised the majority in the Shelby County case three years ago. That decision rendered inoperative Section 5 of the Voting Rights Act, under which certain jurisdictions with a history of voting discrimination, including North Carolina, had to get “pre-clearance” from the Justice Department or a federal court before making any change in voting procedures. Between 1980 and 2013, the Justice Department had objected to more than 50 of North Carolina’s proposed changes. A month after the Shelby County decision, the state’s legislature enacted the law at issue in the case, North Carolina State Conference of the N.A.A.C.P. v. McCrory.

In light of that history, the state’s application for a stay that would have preserved its voter-ID law for the November election made an argument that took my breath away.

“There is nothing inherently unusual about the prospect that states formerly subject to preclearance will be able to enact some laws after Shelby County that they could not before it,” the state told the court. “That is both a necessary and an intended consequence of this court’s decision.”

Was Chief Justice John G. Roberts Jr. really persuaded by this line of argument? Did he forget that his main rationale in the Shelby County majority opinion was that “things have changed dramatically” in the nearly 50 years since the Voting Rights Act imposed preclearance on Southern states? What’s changed dramatically, evidently, is what states feel entitled to get away with.

When the Supreme Court denies a stay, justices who may have disagreed don’t usually reveal the court’s internal dissension by announcing themselves, as the four dissenters did in this case. Why did they do it? To express their frustration with their project left uncompleted? To underscore the significance of the missing fifth vote? Would it be unseemly to suggest that only Justice Scalia’s death has preserved democracy in North Carolina?

There, I just did.

Justice Scalia’s absence is already having an impact on the new term in intriguing ways. Before his death in February, one of his final votes was in favor of hearing an important religion case, Trinity Lutheran Church v. Pauley. The case, granted on Jan. 15, is a challenge based on the First Amendment’s religion clauses to the Missouri State Constitution’s prohibition on providing direct financial support to churches.

The church that brought the case operates a day care center and seeks inclusion in a state program that makes scrap tires available for playground surfaces. The church argues that its exclusion from the tire program violates the First Amendment right to free exercise of religion and amounts to discrimination against religion, in violation of the First Amendment’s Establishment Clause. Missouri replies that there is no impairment of the church’s ability to pursue its religious mission, and that the Supreme Court has never found a constitutional requirement for a direct public subsidy to a church.

The state argues that the case is governed by a 2004 Supreme Court decision, Locke v. Davey, which rejected a student’s claim that he was entitled as a matter of free exercise to use a state scholarship to pursue a theology degree. Writing for the court, Chief Justice William H. Rehnquist said that “the state has merely chosen not to fund a distinct category of instruction.” Not every state action that might be permitted under the Establishment Clause was required under the Free Exercise Clause, he wrote, adding that it was important to maintain “play in the joints” between the two religion clauses.

Justice Scalia dissented. “What next?” he asked. “Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense?”

The issue in the Trinity Lutheran case is one of deep constitutional structure and current political salience. (As an aside, Justice Scalia’s dissenting opinion in the 2004 case now reads as an eerie flip of today’s controversy, where priests and nuns are seeking to deny contraception benefits to others, based on their own conscience claims.) Three dozen friend-of-the-court briefs attest to its importance. It’s safe to say that when the church, represented by Alliance Defending Freedom, a group that litigates many religious right causes before the courts, filed its Supreme Court appeal last November, it had reason to expect it was on a path to victory.

The Roberts court has been notably more friendly to religion than the Rehnquist court, as a result of the substitution of Chief Justice Roberts for Chief Justice Rehnquist and of Justice Samuel A. Alito Jr. for Justice Sandra Day O’Connor. (Although Justice Anthony M. Kennedy joined Chief Justice Rehnquist’s majority opinion in Locke v. Davey, he seems to have become more committed to religious claims in the intervening decade; his opinion for a 5-to-4 majority in favor of legislative prayer in Town of Greece v. Galloway two years ago produced one of the most religion-favoring decisions in the court’s history.)

So now the outlook for Trinity Lutheran has changed from relative clarity to near-certain deadlock, as the court itself has implicitly acknowledged. Nearly all the other cases granted in January have been scheduled for argument in the court’s October sitting, which begins on Tuesday, or its November sitting, which begins Nov. 1. But there is no word of when Trinity Lutheran might be scheduled — or when deadlock might be broken.

A zone of silence surrounds another constitutional provision closely identified with Justice Scalia: Second Amendment gun rights. He wrote the majority opinion in District of Columbia v. Heller, the 2008 decision that by a 5-to-4 vote recognized an individual right to keep a handgun at home for self-defense. Since then, gun cases have multiplied around the country seeking to expand on what — depending on what happens next — was either a fairly limited decision or a constitutional breakthrough of historic dimension.

Several recent lower court decisions on gun rights are plausibly in the Supreme Court pipeline, including a decision this summer by the United States Court of Appeals for the Ninth Circuit that upheld California’s restrictions on carrying concealed weapons. The time for filing a Supreme Court appeal has yet to run. The decision of the smart lawyers representing the plaintiffs in that case, Peruta v. County of San Diego, on whether to take their loss or press ahead will say a lot about the character of the new term, and of the 12th year of the Roberts court.